Skip to content

The Future of Aboriginal Education at U of A Law

David Foster, 2L

In June 2015, the Truth and Reconciliation Commission (TRC) released its report on how the legacy of residential schools and the historic reatment of Aboriginal people in Canada can be addressed by government and society. Two of the TRC’s recommendations, number 27 and 28, specifically address legal education in Canada. Recommendation 27 calls on law societies to ensure lawyers receipt appropriate  cultural competency training on residential schools, Aboriginal rights, Indigenous legal traditions, Aboriginal-Crown relations and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP.) Recommendation 28 calls upon all Canadian law schools to offer a required course in Aboriginal peoples and the law which would cover the same areas.

So far, Lakehead University’s Bora Laskin Faculty of Law is the only law school that requires all students to take mandatory courses devoted to Aboriginal legal issues. First year students are required to take Indigenous Legal Traditions as well as a non-credit experiential learning course, Aboriginal Perspectives, which is based on activities and guest speakers from local First Nations and Metis communities. In second year, a full-year course on Aboriginal Peoples and the Law is required, which covers Canadian law relating to Aboriginal and treaty rights as well as UNDRIP.

The University of Victoria law school is currently engaged in a two year curriculum review running from 2014 to 2016, and plans to incorporate the the TRC’s recommendations. UVic: currently in two year review of law curriculum (2014-16) and working to incorporate TRC recommendation. UVic is also working on a program which would offer a joint degree in Common Law and Indigenous Law, similar to the joint Common Law/Civil Law degree offered at McGill University.

While U of A law does not currently have a required upper year in Aboriginal peoples and the law, the removal of Conflicts as an upper year requirement last year means there is room to add a new one. Additionally, U of A law has more upper year required courses (a total of six) than some other law schools, so there may be room to reduce other requirements. UVic law dropped Evidence and Civil Procedure as requirements in 2012, and does not require Jurisprudence or Legal History.

With the relocation of law professor Darcy Vermette to the Faculty of Native Studies, U of A law has only one professor left, Catherine Bell, who specializes in Aboriginal law. Bell’s seminar course in Aboriginal peoples and the law is the only course focused on this area which the law school currently offers. Bell believes there should be mandatory education on aboriginal legal issues, including the history of Aboriginal people, the legacy of residential schools and Aboriginal people and the justice system. “We wouldn’t ask, should we teach division of powers or property law to have the full foundations of a legal education,” said Bell.

While Aboriginal rights are included in small sections of the first year Constitutional and Property Law required courses, Bell thinks there is a need to go beyond this. She sees four reasons for mandatory Aboriginal legal education: the constitutional foundations of Aboriginal rights, the over-representation of Aboriginal people in the justice system, especially in family and criminal law, the TRC’s observation that many lawyers don’t have the background to adequately represent Aboriginal clients, and the federal and provincial governments’ current review of law and policy with a view to implementing UNDRIP.

“If anyone is going to work in family and criminal law, in order to fashion solutions, and understand the nature of family harm or criminal harm, there must be understanding of historical factors and personal factors leading to the breakdown or the offense,” Bell explained, “or you can’t properly represent your client and make a recommendation for an appropriate disposition by the court.” In order to meet this need, Bell is also involved in the development of a clinical course in the law school on individual factors in sentencing and Aboriginal people to train students in the rationale and principles of Gladue and application to Aboriginal offenders. There may also be a moot associated with this experiential learning course.

The Aboriginal peoples and the law seminar that Bell teaches is capped at 20 students, which Bell says is necessary in order to discuss issues in-depth. She supports the idea of a larger, required upper-year lecture course on Aboriginal peoples and the law as long as more advanced, specialized seminar classes continued to be offered. However, the logistics of a larger course and Bell’s other teaching commitments mean that new professors would have to be hired and a new curriculum developed for the lecture course to become a reality.

Bell noted that the Council of Law Deans is exploring how to implement the TRC recommendation 28 in consultation with the TRC’s own membership, and that there is a variety of opinion on whether the recommendation requires a stand-alone course. She also observed that Constitutional and Property Law used to have more course credit and the sections of those courses on Aboriginal rights could be expanded if the course weight restored and Foundations was condensed to a one- or two-week class. Bell’s final message is the need for more courses in the area of Aboriginal peoples and the law and Indigenous law, and more hiring of faculty qualified to teach them. “There’s only one course and one professor in the field right now,” she said. “It’s not enough.”

Jessica Cartwright, a second-year law student and co-president of the Aboriginal Law Students’ Association, also supports a second-year required course in Aboriginal peoples and the law, and says ALSA is working toward this. Cartwright thinks the TRC’s recommendation 28 is clear in calling for a standalone course, not just increased coverage of Aboriginal law in other courses. She also suggests that cultural competency training be offered, similar what social workers receive.

Cartwright came to law school with the mission of advancing Aboriginal legal issues. She thinks the U of A law school is behind other Canadian law schools in the field of Aboriginal education, as well as behind what she experienced as a U of A undergraduate in political science. However, some progress is being made. In August, the ALSA co- presidents met with Dean Paul Paton and Vice-Dean Moin Yahya to discuss increasing Aboriginal legal education in core areas such as constitutional, criminal and property law.

According to Cartwright, “They validated and recognized that the Faculty of Law has responsibility for this.”

Cartwright also believes that cultural competency needs to be addressed in codes of conduct for the legal profession. For instance, in the class actions of residential school survivors, the adversarial system came up against survivors and in some cases, they were traumatized by the defendants’ lawyers. The over-representation of Aboriginal people in the criminal and family justice systems means that Aboriginal clients will usually have to be represented by non-Aboriginal lawyers, and these clients require lawyers who understand their background and needs. “Lawyers who practice in areas with a significant percentage of Aboriginal clients should be doing ongoing cultural competency training,” said Cartwright. Additionally, non-Aboriginal people who want to effectively represent Aboriginal clients should network and be involved in the community, and take relevant courses when they’re available.

To provide law students with more practical experience of Aboriginal legal issues, ALSA has been collaborating in creating the Gladue clinic on sentencing, as well as a potential “Aboriginal SLS,” which could provide some of the same hands-on experience as Student Legal Services, but would be dedicated to serving Aboriginal clients. As yet, it’s not clear if this initiative will become an additional SLS project or would be run independently in a grassroots fashion by ALSA and local non-profit organizations such as Boyle Street Community Services.

In the meantime, ALSA has planned a speakers’ series in March with the TRC recommendations as the topic. Cartwright would like to see the law school hire at least two new faculty members with an Aboriginal background. She also thinks a non-credit course based on guest speakers, such as the Aboriginal Perspectives course offered by Lakehead, could be valuable.

Given the addition of two or three more professors, U of A law may be able to provide a required upper-year course in Aboriginal peoples and the law. Additionally, due to the work of faculty and students such as Bell and Cartwright on the Gladue clinic and the proposed “Aboriginal SLS,” we will see more focus on Aboriginal legal issues. However, the law school has a long way to go in offering a full range of professors and courses focused on Aboriginal peoples and the law and Indigenous legal traditions.